THIRD PARTY DISCOVERY PROCEEDINGS IN THE NETHERLANDS ANTILLES
The judge may order third parties to disclose documents
On August 1, 2005, the new code on civil procedure (the ‘Code’) became effective. According to Section 142 par. 1 of the Code, the court may, upon request of one of the parties, order a third party to provide information and to produce documents (including electronic documents). This discovery is limited to proceedings already pending.
The judge will not grant such a discovery prior to the third party being given the opportunity to object. Possible arguments the third party could bring forward: (a) he is not able to provide the information or documents requested; (b) the information is obtainable from some other source that is more convenient, or less expensive; and (c) the party seeking discovery has had ample opportunity to obtain the information through other sources.
If granted, the court determines the scope of the discovery as well as the method to be used. If the third party is unwilling to cooperate, the court’s order may include a fine in favor of one or both parties.
Karel Frielink
Attorney (Lawyer) / Partner
In addition to objecting to disclosing the requested documents, the third-party would be wise to provide the Court with a proposed confidentiality order. This would give the Court an alternative to granting limitless discovery or no discovery at all. The confidentiality order should include restrictions on who can view the discovery, copying the requested discovery and destruction of the discovery once the case is over. There are multitudinous reasons for using a confidentiality order.
Thank you for your response. The concept of a confidentiality order is not known under the laws of ther Netherlands Antilles. When considering whether to grant the discovery request, the judge will take into account any third-party objection to the request, including an objection that deals with the confidential nature of the requested documents.
Kind regards,
Karel Frielink